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Five Replies to Evan Bernick

Lest we exhaust the valiant readers who have made it this far, I will reply as concisely as I can to Evan Bernick’s five responses:

1. Given that Bernick is an originalist, a commitment to originalism ought to be the top quality that he seeks in a Supreme Court justice. The fact that many cases “are resolved on the basis of constitutional constructions” makes it more, not less, important to ensure that those constructions are consistent with originalism.

Bernick says that he “do[es] not believe that the original Constitution requires a particular degree of judicial deference.” But his original essay, citing Philip Hamburger’s Law and Judicial Duty, posited that there exists a “constitutional duty of independent judgment,” and I pointed out that Hamburger explains that that duty of independent judgment required that judges treat a statute as binding unless it was “manifestly contrary” to the Constitution. Bernick offers no response.

2. Bernick “do[es] not deny” that “Alexander Hamilton, John Marshall, or anyone else believed that restraint”—i.e., the requirement of a clear conflict between statute and Constitution before a judge declines to apply the statute—“was desirable or even that they believed it to be a matter of judicial duty.” (I’ve dropped Thayer from Bernick’s quote, as I don’t rely on Thayer.) But it’s not just that Hamilton and Marshall “believed it to be a matter of judicial duty”; Hamilton explained in Federalist No. 78 why what we now call the power of judicial review rests on such a duty.

3. We don’t need to go far afield into epistemology to recognize that the duty of independent judgment is entirely compatible with a clear-conflict requirement. Again, Bernick’s source for the former (Hamburger) explains that the two went together.

4. In support of his claim that Judge Bork got “our Madisonian system precisely backwards,” Bernick states: “The notion that mere majoritarian might could ever trump individual rights was entirely foreign to Madison’s thought.” (His emphasis.) But it’s precisely because Madison knew that “majoritarian might” could in practice violate individual rights that he devised a constitutional system that dispersed majoritarian power in order to limit that risk.

Bernick strangely relies on an 1835 letter by Madison that discusses social-contract theory and what the majority may “rightfully” do. Bernick thus repeats the very mistake I identified: confusing an elementary constitutional proposition of American self-government with a moral proposition.

5. No, I’m still not sure that I have any clear idea what judicial engagement is, and the arguments for it continue to strike me as feeble. Does that mean that I think that Bernick is “necessarily trying to pull a fast one”? (His emphasis.) No, I will happily presume his sincerity. But by his own account, he believes that he has discretion to advocate whatever “constitutional constructions” advance his conception of the judicial “approach that [he believes] is best “calculated to effectuate the Constitution’s guarantees” (as he understands them). Given the power of motivated reasoning, the line between his own account of judicial engagement and a judicial engagement that is nothing more than camouflage for libertarian judicial activism is thin indeed, if not entirely illusory.

Also from this issue

Lead Essay

Evan Bernick makes the case for what he terms judicial engagement: If it is true that the federal judiciary serves to safeguard the rights of individuals and the basic structure of the Constitution, then judges will necessarily have to disagree at times with Congress, and those disagreements will necessarily mean that laws are struck down, perhaps often. Independent judgment, and an independent judiciary, requires nothing less. Bernick addresses some progressive and conservative arguments for judicial deference and finds them lacking; he commends an engaged and active judiciary to conservatives who want to protect economic liberties more strongly.

Response Essays

David A. Strauss argues that “judicial engagement” is little more than a buzzword. The political branches of our government can and do fail, but so does the judiciary, and we are not to imagine that somehow a perfected judiciary will one day come along and set everything in its proper place. Like all institutions, the courts have a design and a function that is particularly their own, and this necessarily entails certain institutional features, including institutional failings. Liberals and conservatives alike have watched as the Supreme Court issued rulings that one side or the other did not like. But the problem is not so much whether the Court does too much or too little. Rather, some coherent and defensible judicial philosophy must be found, and when it is, judges should be active, or not, in response to it.

Barry P. McDonald argues that, properly understood, judicial restraint should be praised. In a democracy, unelected judges’ roles are to be narrow, and they must act only with a clear constitutional mandate. When room for reasoned disagreement exists, we already have a method in place to settle it: That method is the ballot box, because legislatures are better than judges at making complex, often discretionary decisions about economic and social policy.

Edward Whelan argues that the real question concerns constitutional originalism, not activism or restraint. What matters is how we answer the question of what the Constitution means, because the answer to this question will (or at least should) determine whether any particular law is allowed or forbidden. Whelan charges that “judicial engagement” means nothing more than libertarian judicial activism, and amounts to an attempt to smuggle in libertarian policy preferences that would otherwise be unacceptable.

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